U.S. DEPARTMENT OF JUSTICE IMMIGRATION AND NATURALIZATION SERVICE, WASHINGTON, D.C. and AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, NATIONAL BORDER PATROL COUNCIL, AFL-CIO

U.S. DEPARTMENT OF
JUSTICE

IMMIGRATION AND NATURALIZATION
SERVICE, WASHINGTON, D.C.

Respondent

and

AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, NATIONAL BORDER PATROL COUNCIL, AFL-CIO

Charging
Party

Case No. WA-CA-30677

NOTICE OF TRANSMITTAL OF
DECISION

The above-entitled case having been
heard before the undersigned Administrative Law Judge pursuant to
the Statute and the Rules and Regulations of the Authority, the
under-signed herein serves his Decision, a copy of which is
attached hereto, on all parties to the proceeding on this date and
this case is hereby transferred to the Federal Labor Relations
Authority pursuant to 5 C.F.R. § 2423.26(b).

PLEASE BE ADVISED that the filing of
exceptions to the attached Decision is governed by 5 C.F.R. §§
2423.26(c) through 2423.29, 2429.21 through 2429.25 and
2429.27.

Any such exceptions must be filed on
or beforeMARCH 13,
1995, and addressed to:

Federal Labor Relations
Authority

Office of Case Control

607 14th Street, NW, 4th
Floor

Washington, DC
20424-0001

WILLIAM B. DEVANEY

Administrative Law Judge

Dated: February 7, 1995

Washington, DC

MEMORANDUM DATE: February 7,
1995

TO: The Federal Labor Relations
Authority

FROM: WILLIAM B. DEVANEY

Administrative Law Judge

SUBJECT: U.S. DEPARTMENT OF
JUSTICE

IMMIGRATION AND
NATURALIZATION

SERVICE, WASHINGTON,
D.C.

Respondent

and Case No.
WA-CA-30677

AMERICAN FEDERATION OF
GOVERNMENT

EMPLOYEES, NATIONAL BORDER
PATROL

COUNCIL, AFL-CIO

Charging
Party

Pursuant to section 2423.26(b) of
the Rules and Regulations, 5 C.F.R. § 2423.26(b), I am hereby
transferring the above case to the Authority. Enclosed are copies
of my Decision, the service sheet, and the transmittal form sent to
the parties. Also enclosed are the transcript, exhibits and any
briefs filed by the parties.

Enclosures

UNITED
STATES OF AMERICA

FEDERAL LABOR RELATIONS
AUTHORITY

OFFICE OF ADMINISTRATIVE LAW
JUDGES

WASHINGTON, D.C.
20424-0001

U.S. DEPARTMENT OF
JUSTICE

IMMIGRATION AND NATURALIZATION
SERVICE, WASHINGTON, D.C.

Respondent

and

AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, NATIONAL BORDER PATROL COUNCIL, AFL-CIO

Charging
Party

Case No. WA-CA-30677

Susan Kane, Esquire

Christopher M. Feldenzer,
Esquire

For the General
Counsel

Amy V. Dunning, Esquire

Mr. Steven R. Freedman

William C. Owen,
Esquire

ON BRIEF

For the
Respondent

Mr. T. J. Bonner

Deborah S. Wagner,
Esquire

BY BRIEF

For the Charging
Party

Before: WILLIAM B.
DEVANEY

Administrative Law
Judge

DECISION

Statement of the Case

This proceeding, under the Federal
Service Labor-Management Relations Statute, Chapter 71 of Title 5
of the United States Code, 5 U.S.C. § 7101,etseq.78960881,
and the Rules and Regulations issued thereunder, 5 C.F.R. §
2423.1,etseq., concerns
whether Respondent unlawfully refused to bargain over "impact and
implementation proposals submitted by the Union." (G.C. Exh. 1(b),
Par. 10). In October of 1991, Respondent gave the Union notice
that it would convert from the Department of Justice Uniform
Personnel/Payroll System to the Department of Agriculture's
National Finance Center's (NFC) system of combined automated
personnel and payroll processing, said conversion to be implemented
a year hence, in October, 1992. The Union, thirty days after
receipt of Respondent's notice,i.e., specifically on November
14,

1991,: a) requested information; b)
submitted two "interim proposals"; and c) stated that it demanded,
"to bargain to the fullest extent permissible . . . concerning the
aforementioned changes in conditions of employment" and insisted
that, "implementation of such changes to be held in abeyance
pending the completion of bargaining . . . ." One of the Union's
November 14, 1991, proposals was resolved and the other (electronic
transfer of per capita taxes [AFGE and Council] and the balance to
appropriate Locals) had been endorsed by Respondent but NFC had
proclaimed the request "not-doable" at this time. On October 16,
1992, two days before the day of conversion, the Union advised
Respondent that it: a) ". . . withdraws its earlier insistence
that the implementation . . . be held in abeyance pending the
completion of bargaining"; b) renewed its request for electronic
transfer of dues; and c) submitted two new bargaining proposals,
actually a single demand -- that the Union be allowed to insert
messages on the remarks section of the bi-weekly Earning Statement
-- with two variants. Respondent rejected the demand to bargain on
the Union's new proposals as untimely. The Agreement of the
parties provides, ". . . The Union will present its views (which
must be responsive to either the proposed change or the impact of
the proposed change) to the Agency within 30 calendar days of
receipt of the proposed change. Reasonable extensions of this time
limit may be granted on request . . . ." (Res. Exh. A, Article
3G). No request for extension of the 30 day time limit was
submitted and no extension was made. Respondent further asserts
that the Union's "Remarks" demand was not germane to I & I
bargaining.

This case was initiated by a charge
filed on May 25, 1993 (G.C. Exh. 1(a)). The Complaint and Notice
of Hearing issued on November 23, 1993 (G.C. Exh. 1(b)) and set the
hearing for a date to be determined. By Notice dated May 20, 1994
(G.C. Exh. 1(f)) the hearing was set for June 29, 1994; by Order
dated June 14, 1994 (G.C. Exh. 1(g)), the hearing was rescheduled
for July 21, 1994; and by Order dated July 7, 1994 (G.C. Exh.
1(h)), the hearing was further rescheduled for August 10, 1994,
pursuant to which a hearing was duly held on August 10, 1994, in
Washington, D.C., before the undersigned. All parties were
represented at the hearing, were afforded full opportunity to be
heard and to introduce evidence bearing on the issues involved. At
the conclusion of the hearing, September 12, 1994, was fixed as the
date for mailing post-hearing briefs, which time was subsequently
extended on motion of the Charging Party, to which the other
parties did not object, for good cause shown, to November 14, 1994.
Charging Party, Respondent and General Counsel each timely mailed,
or filed, an excellent brief, received on, or before, November 18,
1994, which have been carefully considered. On the basis on the
entire record, I make the following findings and
conclusions:

Findings

1. The National Border Patrol
Council (hereinafter, "Union") is the certified exclusive
representative of a nationwide unit of approximately 4,500
employees who are assigned to the U.S. Department of Justice,
Immigration and Naturalization Service's (hereinafter, "Respondent"
or "INS") Border Patrol Sectors (Tr. 11).

2. On September 30, 1976, the Union
and INS entered into an Agreement (Res. Exh. A), which is still in
effect (Tr. 20). Article 3, Section G, provides, in relevant part,
as follows:

"G. The parties recognize that
from time to time during the life of the agreement, the need will
arise requiring the change of existing Agency regulations covering
personnel policies, practices and/or working conditions not covered
by this agreement. The Agency shall present the changes it wishes
to make to existing rules, regulations and existing practices to
the Union in writing. The Union will present its views (which must
be responsive to either the proposed change or the impact of the
proposed change) to the Agency within 30 calendar days of receipt
of the proposed change. Reasonable extensions to this time limit
may be granted on request. . . ." (Res. Exh. A, Art. 3
G).

3. By letter dated October 9, 1991,
Respondent notified the Union that, pursuant to an agreement
between the Department of Justice and the Department of
Agriculture's National Finance Center (NFC), the processing of
INS's payroll, as well as all other Department of Justice employee
payrolls (Tr. 34), would in October, 1992, a year hence, be
converted389366415from the Department of Justice Uniform Personnel Payroll
System (JUNIPER) to NFC's system of automated personnel and payroll
processing (G.C. Exh. 2; Res. Exh. C) hereinafter, the NFC system
of automated personnel and payroll processing will be referred to
as "NFC",i.e.,
unless otherwise indicated, "NFC" will signify both the National
Finance Center and its system of automated payroll
processing).

The letter specifically advised the
Union that, ". . . to comply with the practices of the NFC we will
no longer be able to distribute pay checks at the work site.
Accordingly, checks will either be distributed to an official
residential mailing address or via the Direct Deposit/Electronic
Funds Transfer (DD/EFT) process." (G.C. Exh.
2).1831208709

4. By letter dated November 14,
1991, the Union requested,interalia: a copy of the agreement between
the Department of Justice and the Department of Agriculture,
National Finance Center; and "Any documentation which supports the
assertion that paychecks cannot be distributed at the worksite . .
. ." (G.C. Exh. 3).

In additional, the Union, "Pending
the receipt and review of the requested information . . ."
submitted two "interim" proposals: First, that employees be
allowed to use an INS office address to receive paychecks; and,
Second, that dues withholding be modified at the time of transition
to NFC [essentially, that per capita taxes be electronically
transferred to the AFGE and to the National Border Patrol Council,
respectively, and that the remainder of dues withheld be
electronically transferred to the appropriate Local] (G.C. Exh.
3).

The Union ended its letter with the
following statements,

"The Union reserves the right to
modify the foregoing proposals at any time prior to reaching final
agreement. The Union at this time makes known its demand to
bargain to the fullest extent permissible under law concerning the
aforementioned changes in conditions of employment. The Union
furthermore insists that the implementation of such changes be held
in abeyance pending the completion of bargaining, including the
resolution of all attendant third party procedures." (G.C. Exh.
3).

5. As noted above, n.3, Respondent
informed the Union on February 6, 1992, that payday would be
changed to Thursday. In its initial letter of October 9, 1991,
Respondent had told the Union that the date of implementation would
be "October" 1992. In late April or early May, 1992, Respondent
faxed a copy of its May, 1992, "Personnel/Payroll Conversion
Update" (Res. Exh. C; Tr. 45, 46) which expressly stated that the
conversion would take place on October 18, 1992. The June, 1992,
"Personnel/Payroll Conversion Update" (Res. Exh. D)

and July, 1992, "Personnel/Payroll
Conversion Update" (Res. Exh. E) also expressly stated that
conversion to NFC would take place on October 18, 1992. Indeed,
Mr. T. J. Bonner, President of the Union, stated that, ". . . the
Union was on notice that the proposed implementation was October
the 18th." (Tr. 24). The conversion date was set by the
Department of Justice and applied throughout the
Department.

6. The Union was given two
briefings on the conversion -- the first was held in Washington,
D.C., on April 15, 1992, and the second record was held in New
Orleans, Louisiana on June 19, 1992, at the offices of NFC (Tr. 14,
25, 46; G.C. Exhs. 11, 13, 16). At the June 19, 1992, briefing,
NFC representatives, ". . . let us know [Respondent and the Union]
that their programmers [for a fee] could fine-tune who would get a
particular remarks statement. So, if we wanted to get -- all law
enforcement officers to get a particular statement . . . to isolate
the law enforcement officers from the rest of the employees and
send them a message that no one else would receive." (Tr. 47; and,
also, Tr. 25).

7. With respect to the Union's two
proposals of November 14, 1991, Mr. Freedman testified that as to
receipt of paychecks it had been determined that it was possible to
have them delivered to a designated agent at the worksite and ". .
. we informed Mr. Bonner that they could continue doing that and,
as far as we were concerned, that issue died." (Tr. 48). Indeed,
this was specifically addressed in Respondent's May, 1992,
"Personnel/Payroll Conversion Update" (Res. Exh. C).

With respect to the Union's other
1991 proposal, Mr. Freedman testified that Respondent not only
endorsed, but had joined with the Union, in requesting that NFC
alter the dues computer tape to provide for the electronic transfer
of dues receipts to AFGE, the Council and Locals as requested by
the Union (Tr. 48). The joint proposal was discussed with NFC at
the joint Council meeting (presumably the June 19, 1992, meeting in
New Orleans (G.C. Exh. 16), although it may have been the April 15,
1992, meeting in Washington, D.C. (G.C. Exh. 11)), and Respondent
in its letter of October 26, 1992 (G.C. Exh. 18), informed the
Union that,

". . . While formal notification
has yet to come . . . it is our understanding that the NFC will not
satisfy the request at this time. When we receive a formal
response to this effect, we will forward a copy to you and will
investigate any other means available to accomplish this effort."
(G.C. Exh. 18).

Mr. Freedman testified that, ". . .
verbally we were told that the Finance Center would not do that.
Subsequently, we have followed up and asked to get that in writing,
but to date we have not received a formal response from the Finance
Center." (Tr. 48). When asked if Respondent could have granted
the Union's proposal on its own, Mr. Freedman testified as
follows:

"Q Could INS have adopted those
proposals, or granted those proposals on its own?

"A No. we were not in control. We
could just act as a -- a facilitator.

"Q Whose decision would it have
been to adopt these proposals?

"A The National Finance
Center."

(Tr. 48).

8. The conversion was implemented
on October 18, 1992, ". . . on schedule." (Tr. 50).

9. By letter dated October 16,
19921992623023, but not received until after implementation of the
conversion to NFC, the Union belatedly stated,

". . . Inasmuch as most of the
Union's major concerns have been addressed through cooperative
measures, the Union withdraws its earlier insistence that the
implementation of the program be held in abeyance pending the
completion of bargaining." (G.C. Exh. 17).

The Union further stated that it, ".
. . continues to press for the adoption of its proposal concerning
the payroll deduction of Union dues . . . and repeats such proposal
for your convenience . . . ." (G.C. Exh. 17). After repeating its
dues distribution proposal, the Union then stated,

"At this time, the Union submits
the following additional bargaining proposals:

"2. The 'REMARKS' section at the
bottom of the bi-weekly Earnings Statements for bargaining unit
employees shall be reserved for messages from the National Border
Patrol Council on all odd-numbered pay periods. Such messages
shall not violate any law or contain any libelous
material.

"3. In the event the foregoing
proposal is not implemented at the time of transition to the
National Finance Center, the Union shall be allowed to formulate
messages for three pay periods for each one formulated by the
Service until such time as the ratio of messages outlined in the
foregoing section has been achieved." (G.C. Exh. 17).

10. Respondent replied by letter
dated October 26, 1992. As to the dues computer tape proposal,
Respondent reminded the Union, as noted above, that, "This proposal
was discussed in our joint Council meeting several months ago as
being the desire of both Councils and the Immigration and
Naturalization Service management." (G.C. Exh. 18). Respondent
then advised the Union that, "While formal notification has yet to
come . . . it is our understanding that NFC will not satisfy the
request at this time. When we receive a formal response to this
effect, we will forward a copy to you and will investigate any
other means available to accomplish this effort." (G.C. Exh.
18).

With regard to the Union's new
(additional) proposal concerning its use of the "Remarks" section
Respondent stated,

"The "Remarks" section of the
Statement of Earnings and Leave is for official use and is not
designed for special interest use. The regular use of this section
will be controlled by the NFC for the purpose of either explaining
pay related changes or conducting data verification efforts. Any
other agency designed use will result in an additional cost to the
Service, due to the need for the NFC to assign their own
programmers to perform the task. Accordingly, rather than
utilizing the "Remarks" section on a regular basis, as you
envision, we are more likely to use it on rare occasions to satisfy
unusual circumstances." (G.C. Exh. 18).

11. The Union responded by letter
dated November 9, 1992 (G.C. Exh. 19), in which it stated, in
part,

". . . The Union appreciates the
expressed willingness of your office to pursue a means of
implementing the Union's proposal concerning the manner in which
dues deductions and the accounting therefor shall be provided to
the Union.

". . . In light of the Service's
statement that it only intends to use the "remarks" section on a
rare basis, however, the Union modifies its earlier proposals
concerning this matter as follows:

"The "REMARKS" section at the
bottom of the bi-weekly Earnings Statements for bargaining unit
employees shall be reserved for messages from the National Border
Patrol Council on all pay periods during which said section is not
utilized by the Agency and/or the National Finance Center, provided
that the Agency and/or the National Finance Center do not formulate
more than half of such messages. In no case shall less than half
of such messages be reserved for the exclusive use of the National
Border Patrol Council. Messages from both parties shall be rotated
equitably. Messages supplied by the Union shall not violate any
law or contain any libelous material.

"In the event the foregoing
proposal is not implemented at the time of transition to the
National Finance Center, the National Border Patrol Council shall
be allowed to formulate messages for three pay periods for each one
formulated by the Agency and/or the National Finance Center until
such time as the National Border Patrol Council has formulated as
many messages as the Agency and/or the National Finance Center
since the transition occurred." (G.C. Exh. 19).

12. Respondent replied by letter
dated November 23, 1992, in which it stated, in part, as
follows:

"Since you were notified of the
Service's intent to change the processing of payroll checks on
October 15, 1991 and subsequently submitted proposals on November
14, 1991 in response to that notice, the submission of this
additional proposal is now considered untimely. (footnote omitted)
While we consider this an interesting proposal, it is
inappropriate to consider it at this time." (G.C. Exh.
20).

13. The Union renewed its demand to
bargain on its "Remarks" proposal by letter dated January 14, 1993
(G.C. Exh. 22)1090563500and Respondent by letter dated February 3, 1993 (G.C. Exh. 24)
again responded that, ". . . we consider this to be an untimely
proposal and inappropriate to consider at this time." (G.C. Exh.
24).

14. The JUNIPER form,i.e., the employee's
bi-weekly statement of Earnings and Deductions used by the
Department of Justice prior to conversion to NFC, contained a
wholly comparable "REMARKS" section to that of NFC (G.C. Exh. 5,
Attachment), which was, ". . . used for messages such as 'buckle up
for safety,' 'the Executive Order such and such requires that all
employees use their seat belts,' 'contribute to the combined
federal campaign,' 'buy U.S. Savings Bonds.' Just messages that
the employer wanted to get out to its employees." (Tr.
16).

1. Union's
"Remarks" proposal was not negotiable under § 6(b)(2) or
(3).

Not only was the Union's "Remarks"
proposal not received by Respondent until after implementation of
the conversion to NFC, but it was neither a procedure which
management officials would observe in exercising the management
right to convert from JUNIPER to NFC (§ 6(b)(2)) nor an appropriate
arrangement for employees adversely affected by the exercise of
manage-ment's right to convert to NFC (§ 6(b)(3)). It is quite
true, as General Counsel and the Charging Party assert, that the
Authority held, inU.S. Department of
Labor, Washington, D.C., 38 FLRA 1374, 1379
(1991) (hereinafter, "Department of
Labor"), that a union's, ". . . proposal as
to the content of messages printed on leave and earnings statements
of unit employees concerns a condition of employment as defined in
section 7103(a)(14) of the Statute . . . ."; but the fact that a
matter is negotiable as a condition of employment does not make it
a negotiable procedure or an appropriate arrangement under §
6(b)(2) or (3) of the Statute.

There was no change with regard to
the "REMARKS" section of the Earning and Deductions
statement.1342796588 The Union's "Remarks" proposal was not,

"(2) procedures which management
officials of the agency will observe in exercising any authority
under this section;" (5 U.S.C. § 7106(b)(2)).

Indeed, the conversion did not
affect the "REMARKS" section which, as noted, was the same before
and after the conversion to NFC. Nor does the Union's "Remarks"
proposal have any relation to, or constitute, procedures Respondent
will observe in converting from JUNIPER to NFC. When an agency
exercises a § 6(a) management right, as the Department of Justice
did, to convert its payroll processing from JUNIPER to NFC, it is
obligated to negotiate "procedures which management . . . will
observe in exercising" that authority. The Statute is clear that
management's duty to negotiate under § 6(b)(2) is limited to
procedures that management will observe in exercising a management
right under § 6(a) -- here, the conversion from JUNIPER to NFC.
This is demonstrated by the litigated cases, for example:
inAmerican Federation of Government
Employees, AFL-CIO, Local 1999 and Army-Air Force Exchange Service,
Dix-McGuire Exchange, Fort Dix, New Jersey(hereinafter, "Dix-McGuire"), 2 FLRA 153
(1979)524428057the union had proposed, as material here, that in the event of
a disciplinary suspension or removal, the grievant will exhaust the
contractual review provisions before the suspension or removal is
effectuated and the employees will remain in a pay status until a
final determination is rendered. The Authority, in holding the
proposal negotiable, stated, in part, that,

". . . Section 7106(b)(2), however,
provides that the enumeration of the specified management rights in
subsection (a) does not preclude the negotiation of procedures
which management will observe in exercising those rights, [there,
taking disciplinary action] . . . Congress did not intend
subsection (b)(2) to preclude negotiation on a proposal merely
because it may impose on management which would delay
implementation of a particular action involving the exercise of a
specified management right. . . ." (2 FLRA at 154-155).

InAmerican
Federation of Government Employees, AFL-CIO and Air Force Logistics
Command, Wright-Patterson Air Force Base, Ohio, 2 FLRA 604 (1980) (hereinafter, "Wright-Patterson"), the union's
proposal XII2107264332provided that the agency would hold in abeyance implementation
of any proposed change in conditions of employment pending decision
of the Federal Service Impasses Panel except in circumstances
involving an "overriding exigency," and the Authority found this to
be, "a negotiable procedure under section 7106(b)(2) of the
Statute." (2 FLRA at 626). The Authority further stated, ". . .
Union Proposal XII establishes a negotiable procedure under section
7106(b)(2) of the Statute which management officials will observe
in the exercise of management rights . . . ." (2 FLRA at
626).

It has been emphasized even more
strongly with regard to the correlative provisions of § 6(b)(3).
For example, inNational Federation of
Federal Employees, Local 1454, 26 FLRA 848,
852 (1987), the Authority stated,

"The threshold question in applying
theKansas Army National Guardanalysis [21 FLRA 24 (1986)-- whether a proposal
'excessively interferes' with the exercise of management's rights]
is whether the proposal is an 'arrangement' for adversely affected
employees . . . ."

". . . The threshold question is
whether the proposal is an 'arrangement' for adversely affected
employees . . .

. . .

"We need not reach the question of
whether the proposal is an 'appropriate' arrangement, since it does
not qualify for consideration under section 7106(b)(3) because it
does not concern an 'arrange-ment' for adversely affected employees
. . . ."

The Union's proposal that it be
permitted to use the "Remarks" section to proselytize bargaining
unit employees was not germane to the conversion to NFC and was not
a procedure Respondent would follow in exercising its right to
convert to NFC and, accordingly, was not a procedure within the
meaning of § 6(b)(2) of the Statute. (See,AFGE, Local 1940 and Plum Island Animal Disease Laboratory,
Dept. of Agriculture, Greenport, N.Y., FLRC
No. 71A-11, 1 FLRC 100, 104 (1971)). Nor was it an arrangement for
employees adversely affected by Respondent's exercise of its right
to convert to NFC. Accordingly, because it does not concern an
"arrangement" for adversely affected employees it is not negotiable
under § 6(b)(3) of the Statute.

But for its refusal to bargain about
its Union's "Remarks" proposal, the record is clear that Respondent
fully met its obligation to bargain about the impact and
implementa-tion of the conversion to NFC. Thus, as to the Union's
other two proposals, one, receipt of pay at the worksite, was
resolved, and the other, electronic division and distribution of
dues by NFC, Respondent agreed, indeed, joined with the Union in
requesting that this be done.1135652991 Although this matter had not been resolved, there had been no
refusal to bargain. To the contrary, Respondent informed the Union
that it would, ". . . investigate any other means available . . .
." (G.C. Exh. 18) to accomplish the mutually desired electronic
division and distribution of dues. Having found that Respondent
did not refuse to negotiate in violation of §§ 16(a)(5) or (1)
inasmuch as the Union's "Remarks" proposal was neither a procedure,
within the meaning of § 6(b)(2), nor an arrangement for employees
adversely affected, within the meaning of § 6(b)(3) of the Statute,
the Complaint should be dismissed.

2. Union's
"Remarks" proposal was untimely.

The Union's initial "Remarks"
proposal (G.C. Exh. 17), although dated two days before the
conversion date, because it was mailed from California, was not
received by Respondent until after conversion to NFC on October 18,
1992. Respondent in its letter of October 26, 1992 (G.C. Exh. 18)
stated that, "The 'Remarks' section . . . is for official use and
is not designed for special interest use. The regular use of this
section will be controlled by NFC for . . . explaining pay related
changes or . . . data verification . . . . Any other . . . use
will result in an additional cost to the Service . . . Accordingly,
we are more likely to use it on rare occasions . . . ." (G.C. Exh.
18). By letter dated November 9, 1992 (G.C. Exh. 19), the Union
modified its "Remarks" proposal, to use the section at least one
half the time, and Respondent by letter dated November 23, 1992
(G.C. Exh. 20) stated that the Union's proposal was untimely. The
Union by letter dated January 14, 1993 (G.C. Exh. 22), renewed its
demand to bargain on its "Remarks" proposal and Respondent by
letter dated February 3, 1993, again responded that, ". . . We
consider this to be an untimely proposal and inappropriate to
consider at this time." (G.C. Exh. 24).

There is no question that the
Union's "Remarks" proposal1630848718was made as an "I & I" proposal and it was untimely. The
Agreement of the parties' specifically provides that,

". . . The Union will present its
views (which must be responsive to either the proposed change or
the impact of the proposed change) to the Agency within 30 calendar
days of receipt of the proposed change. Reasonable extensions to
this time limit may be granted on request. . . .

General Counsel's assertion that, ".
. . the contractual provision makes no reference to proposals but
only to 'views,' . . . ." (General Counsel's Brief, p. 15),
overlooks the timeframe of the Agreement, which was executed under
Executive Order 11491. The Executive Order used the term
"views",e.g.§
9(b)494156338,
and both from the historical antecedent but more particularly from
the language of subsection G, it is clear, and I so conclude, that
"views" does, indeed, encompass proposals. The Union on November
14, 1991, did,interalia, submit
two proposals. As disagreement did exist, the parties did enter
into negotiations by the repeated exchange of information; briefing
sessions were held in Washington, D.C. and in New Orleans,
Louisiana; one of the Union's proposals was resolved and Respondent
not only endorsed the other but joined with the Union in the
request that NFC divide membership dues and electronically transfer
the money to AFGE, the Councils and the Locals; agreement was
reached on all of the Union's comments about information
announcements to employees; and on the date of implementation --
October 18, 1992 -- no issue remained in dispute. Respondent had
fully complied with its obligation to bargain concerning the
"impact and implementation" of the conversion from JUNIPER to NFC.
Department of the Treasury, Bureau of
Alcohol, Tobacco and Firearms, North Atlantic Region (New York, New
York), 8 FLRA 296, 304 (1982);Office of Program Operations, Field Opera-tions,
Social Security Administration, San Francisco
Region, 15 FLRA 70, 72 (1984);Department of Health and Human Services, Social
Security Administration, Baltimore, Maryland, 16 FLRA 217, 228-229 (1984). Article 3, Sec. G does not
limit the duration of bargaining but, rather, the time for
submis-sion of the Union's proposals. Because the Union's
"Remarks" proposal was not made within 30 days after receipt of
Respondent's November 9, 1991, notification of the planned
conversion, it was untimely. U.S.
Immigration and Naturaliza-tion Service, 24
FLRA 786, 790 (1986)1464792766;Department of Air Force, Air Force
Materiel Command, Wright-Patterson Air Force Base, Ohio and
American Federation of Government Employees, Council 214,
AFL-CIO, Case No. CH-CA-30438, OALJ 95-17
(December 20, 1994) (hereinafter, "Council
214"). I give no effect to the Union's
designation of its November 14, 1991, proposals as "interim"
proposals or to its statement of intent to, "bargain to the fullest
extent permissible under law" as extending the time for it to
submit proposals for, as well stated by Judge Arrigo inCouncil 214,supra,

"The Union may not unilaterally
amend the procedural requirements set forth in their bilateral
agreement simply by stating it could proceed in the future without
regard to the constraints imposed by their negotiated agreement."
(p. 8)

Moreover, even apart from the
Agreement of the parties, it has long been held that where the
Union is given ample prior notification of a proposed change of a
condition of employment [here of course, Respondent gave the Union
notice one year in advance], a request to bargain made "at the last
moment" is untimely. Social Security
Administration, Bureau of Hearings and Appeals, A/SLMR No. 960, 8 A/SLMR 33 (1978);United States Department of Defense, Department of the Army,
Headquarters, Fort Sam Houston, Texas, 8
FLRA 623, 624 (1982);Internal Revenue
Service (District, Region, National Office Unit), 14 FLRA 698, 700 (1984) (hereinafter, "IRS");General
Services Administration, 15 FLRA 22, 24
(1984);Small Business Administration,
Washington, D.C. and Small Business Administration, Salt Lake City
District Office, Salt Lake City, Utah, 15
FLRA 522, 524 (1984). As the Authority stated inIRS,supra, "When a union has adequate
notice of when a change is to be implemented, it must make a timely
request for impact bargaining." (Id.at 700).

Because the Union's "Remarks"
proposal was not timely made, Respondent's refusal to bargain about
it did not violate § 16(a)(5) or (1) of the Statute and the
Complaint should be dismissed.

3. Use of
"Remarks" section to communicate with unit employees is a
substantive matter.

The Authority inDepartment of Labor,supra, held,

". . . the Union's proposal as to
the content of messages printed on leave and earnings statements of
unit employees concerns a condition of employment as defined in
section 7103(a)(14) of the Statute . . . ." (38 FLRA at
1379).

The Authority further stated, in
part, that,

". . . the proposal's effect on
nonunit employees or positions is not a factor in making a
negotiability determination . . . Rather . . . we conclude that the
proposal vitally affects the working conditions of unit employees
in that it is intended to facilitate the Union's communications
with unit employees and 'improved communication between unions and
employees can effectuate employees' rights under section 7102 of
the Statute . . . .'" (Id., at 1386).

The Union's "Remarks" proposal was
not negotiable as a procedure pursuant to § 6(b)(2) of the Statute
and if it were it was not timely made. The Union could have made a
mid-term request to bargain, although it did not do so, and the
record does not show the procedure for doing so (Tr.
52).106069358
General Counsel's suggestion (General Counsel's Brief, p. 11, n.4)
that Respondent was obligated to bargain over the Union's "Remarks"
proposal as ". . . mid-term bargaining proposals" is rejected. The
Union never made a demand to bargain mid-term; the sole allegation
of the Complaint is that Respondent refused to negotiate over,
"impact and implementation proposals . . . ." (G.C. Exh. 1(b),
Par. 10); and the Complaint was never amended.

Having found that Respondent did not
violate § 16(a)(5) or (1) of the Statute, it is recommended that
the Authority adopt the following:

ORDER

The Complaint in Case No.
WA-CA-30677 be, and the same is hereby, dismissed.

WILLIAM B. DEVANEY

Administrative Law Judge

Dated: February 7, 1995

Washington, DC

CERTIFICATE OF SERVICE

I hereby certify that copies of this
DECISION issued by WILLIAM B. DEVANEY, Administrative Law Judge, in
Case No. WA-CA-30677, were sent to the following parties in the
manner indicated:

For convenience of reference,
sections of the Statute hereinafter, are, also, referred to without
inclusion of the initial "71" of the statutory reference,i.e., Section 7116(a)(5)
will be referred to, simply, as, "§ 16(a)(5)."

"The conversion came about because
it was determined that the systems, the automated personnel and
payroll systems that the Department of Justice had were inadequate.
In order to bring them up to speed, it would have cost somewhere
around $20 million, or so.

"By switching to those of the
Department of Agriculture's Finance Center, it would have cost us
only around $13 million. So, it was a cost savings for us to go to
someone who already had a proper automated system than try to fix
our own." (Tr. 33).

The only other significant change
was that payday would move from Wednesday to Thursday. This was
not called to the Union's attention until about February 6, 1992,
when an advance copy of a proposed bulletin was sent to the Union
(G.C. Exh. 5, Attachment).

The date of receipt was not shown;
however, based on the receipt by the Union of all of Respondent's
mailed correspondence from Washington, D.C. to California (G.C.
Exh. 10 was hand delivered), the shortest delivery time was four
days (G.C. Exhs. 2, 4, 9, 11, 13, 14, 15, 16, 18, 20, 21, 23 and
24). Except for G.C. Exhs. 18 and 20, which took four days, all
other letters required 5 to 10 days for delivery. Accordingly, it
is conclusively presumed that Respondent did not receive the
Union's letter dated October 16, which was from California to
Washington, D.C., until sometime after October 18, 1992, and the
record does not show that the letter dated October 16, 1992, was
sent by any means other than by Certified mail (G.C. Exh.
17).

Respondent notified the Union on
January 13, 1993 (G.C. Exh. 21), of a change of the two digit code
for the National Border Patrol Council; and on January 26, 1993
(G.C. Exh. 23) that NFC used a different form for transferring a
union member's dues from one location to another upon an employee's
reassignment; but directed continued use of pre-NFC forms since the
form remains in the employee's payroll file and does not go to
NFC.

Although the inference is clear,
from the testimony that NFC, ". . . let us know that their
programmers could fine-tune who would get a particular remarks
statement" (Tr. 47; see, also, Tr. 25), that JUNIPER could not be
"fine-tuned" to direct, for example, a particular remarks statement
to members of the bargaining unit only; nevertheless, the Authority
had made clear in itsDepartment of
Labordecision,supra, ten months prior to
Respondent's letter of October 9, 1991, notifying the Union of the
planned conversion, in October, 1992, to NFC, that distribution to
non-bargaining unit employees does not affect negotiability of such
a proposal. Thus, the Authority stated, in part,

"Inasmuch as the proposal's effect
on nonunit employees or positions is not a factor in making a
negotiability determination, we reject the Respondent's argument
that it need not bargain over the Union's proposal because the
proposal would directly affect the working conditions of
non-bargaining unit employees. Rather . . . we conclude that the
proposal vitally affects the working conditions of unit employees .
. . ." (38 FLRA at 1386).

Wright-Patterson,supra, was
appealed and that case was consolidated in the Court of Appeals
withDix-McGuire,supra;
however, proposal XII was not in issue on appeal and was not
addressed by the Court inDOD,supra, n.7.

Respondent could not grant the
Union's request because it did not control the system. As Mr.
Freedman testified, wholly without contradiction,

"A . . . we were not in control.
We could just act as a -- a facilitator.

"Q Whose decision would it have
been to adopt these proposals?

"A The National Finance Center."
(Tr. 48).

The Department of Justice had made
the request, that NFC subdivide the Union dues computer tape, as
the "desire of both Councils and the Immigration and Naturalization
Service management", but, ". . . NFC will not satisfy the request
at this time. When we receive a formal response to this effect, we
will forward a copy . . . ." (G.C. Exh. 18).

As noted previously, the Union's
initial proposal, while consisting of two variants, in reality was
a single proposal, namely, that the Union be permitted to insert
messages on the "Remarks" section of the bi-weekly Earnings
Statement, as was its modified proposal of November 9, 1992, which
again, consisted of two variants. Accordingly, I have referred to
the Union's proposal in the singular inasmuch as, shorn of
minutiae, it was a single proposal to use the "Remarks"
section.

". . . The labor organization may
suggest changes in the Agency's personnel polices and have its
views carefully considered. It may consult . . . on personnel
policy matters, and at all times present its views thereon in
writing . . . ." (E.O. 11491, Sec. 9(b)).

This case concerned a national
agreement executed June 13, 1979. As Respondent represented, and
President Bonner stated that Respondent Exhibit A, dated September
30, 1976, was the current agreement of the parties (Tr. 20), it
would appear that Respondent Exhibit A applies to a different
bargaining unit. Article 3, Section G, of the 1979 agreement, as
set forth at 24 FLRA 787, n.1, is substantially identical to
Article 3, Section G of the Agreement herein (Sept. 30, 1976),
except that the time for the Union to present its views is not 30
calendar days but is:

Article 38 of the Agreement provides
for renegotiation. Whether mid-term bargaining is governed by that
Article or otherwise is not in issue here and no opinion whatever
is expressed or is to be implied as to how the Union may make
mid-term bargaining demands.